By MICHAEL J. SNIFFEN and MATHEW BARAKAT, Associated Press
Writers
8 minutes ago
ALEXANDRIA, Va. - Fighting for a death penalty in a 9/11 case,
prosecutors are beseeching a federal judge to reconsider her decision
to exclude half the government's case against confessed al-Qaida
conspirator Zacarias Moussaoui.
They
acknowledge their only hope of obtaining the death penalty for the
37-year-old Frenchman of Moroccan descent is to persuade U.S. District
Judge Leonie Brinkema she punished the government too harshly for
tampering with trial witnesses and lying to defense
attorneys.
Brinkema did not immediately respond to the motion for
reconsideration that prosecutors filed Wednesday evening. But she had
indicated earlier she had time available Thursday to hear such a motion
if it were filed.
The jury has been sent home until Monday to give prosecutors time
for their next step.
Brinkema barred prosecutors from submitting any witnesses or
exhibits about aviation security. Prosecutors responded in their motion
that this evidence "goes to the very core of our theory of the case."
At the very least, the prosecutors argued, they should be allowed to
present a newly designated aviation security witness who had no contact
with Carla J. Martin, the Transportation Security Administration lawyer
responsible for the government's misconduct. This would "allow us to
present our complete theory of the case, albeit in imperfect form."
"The public has a strong interest in seeing and hearing it (aviation
security evidence), and the court should not eliminate it from the
case, particularly not ... where other remedies are available," they
wrote Brinkema.
Brinkema ruled Tuesday that Martin violated federal rules
when she
sent trial transcripts to seven aviation witnesses, coached them on how
to deflect defense attacks and lied to defense lawyers to prevent them
from interviewing witnesses they wanted to call. The judge said
Martin's actions and other government missteps had left the aviation
evidence "irremediably contaminated."
The only person charged in this country in the Sept. 11, 2001,
attacks, Moussaoui pleaded guilty in April to conspiring with al-Qaida
to fly airplanes into U.S. buildings. But he denies any involvement in
9/11, saying he was training for a possible future attack.
This trial is to decide whether he is executed or spends life behind
bars.
Prosecutors said the excluded evidence "is one of the two essential
and interconnected components of our case."
The prosecution's case is based on offensive and defensive measures
they argue the government would have taken if Moussaoui had not lied
to FBI
agents about his terrorist connections when arrested in Minnesota three
weeks before al-Qaida flew jetliners into New York's World Trade
Center, the Pentagon and a
Pennsylvania field on 9/11.
They say offensive steps by the FBI to locate 9/11 hijackers in
advance and defensive airport security measures by federal aviation
officials would have combined to prevent at least one death that day.
To get a death penalty, prosecutors must show beyond a reasonable doubt
that an action of Moussaoui's — his lies, in this case — led directly
to at least one 9/11 death.
As a compromise, prosecutors offered to drop arguments that the Federal
Aviation Administration
would have barred small knives, like those used by the hijackers, from
planes and would have altered its terrorist screening profiles to catch
the attackers.
Instead, they would call one witness, whom they did not identify,
who worked at the FAA in August 2001 and could discuss the government's
use of "no-fly" lists to bar named terrorists from planes and how those
lists evolved. They said Martin had no contact with this witness.
"We don't know whether it is worth us proceeding at all, candidly,
under the ruling you made today," Assistant U.S. Attorney Rob Spencer
said in an unusually blunt assessment during a conference call Tuesday.
Spencer added that continuing under these conditions would "waste the
jury's time and the court's time, and we're all mindful of the expense
of this proceeding."
If Brinkema refuses to budge, it's not clear what appeals remain
open. Defense attorney Edward MacMahon said the government can't appeal
Brinkema's ruling to the 4th U.S. Circuit Court of Appeals in Richmond
now that the trial is under way.
Carl Tobias, a law professor at the University of Richmond, said
prosecutors might ask the appeals court for a rarely used common law
relief order called a writ of mandamus, but such orders are granted
only in extraordinary circumstances.
